Federal appeals court: Schools can ban students from wearing American-flag t-shirts in order to prevent violence

AllahpunditPosted at 4:41 pm on February 27, 2014

How would wearing an American flag t-shirt possibly incite violence in an American high school? From the opinion:

The court’s ruling: School administrators can force you to remove your American-flag tee if the alternative is a classmate punching you in the face. That’s because, per the Supreme Court, students don’t have the same free speech rights at school that adults do on other public grounds. At school, the name of the game is order and instruction; you’re entitled to free expression to the extent you don’t interfere with those goals, but once you do, the school’s entitled to limit your expression accordingly.

In other words, a bully can get the principal’s office to silence you by promising to beat your ass if they don’t.

This is, as Eugene Volokh notes, a classic “heckler’s veto” in that it rewards a violent actor by suppressing the speech that’s irritated him instead of punishing him for being violent. What sort of incentives does that create? If the answer’s not obvious, here’s a snippet from the equal-protection section of the opinion that made my eyes pop. The students who had to take off their stars-and-stripes shirts wanted to know why students wearing shirts with Mexican-flag colors weren’t also asked to take off their shirts. Simple, says the court: No one was threatening to beat them up.

If you want to make your classmate shut up, you need to credibly threaten violence. That’s how “free speech” works in the nation’s schools. Take a lesson, America.

Exit question via my pal Karl: Given that these sorts of racial tensions have recurred during more than one of the school’s Cinco de Mayo celebrations, why didn’t they simply stop celebrating the holiday? That’s not optimal either — if you can celebrate St. Patrick’s Day, in theory you can also celebrate Cinco de Mayo — but given that even the court seems to accept that the threats here are one-sided, it’d at least have the virtue of punishing the guilty parties.